Posted on April 23, 2026 by Dominic Smith and Anna Sinclair 15

Council liability for footpath hazards and when is it protected from liability?

In two recent decisions, the NSW Court of Appeal (CoA) has considered when a local council may be liable in negligence for injuries caused on council footpaths and verges. These cases are useful reminders of a council’s duty of care obligations in its capacity as a ‘roads authority’ and in what circumstances it will be able to rely on the limitations of liability under ss43A and 45 of the Civil Liability Act 2002 (CL Act).

Orange City Council v Willis [2026] NSWCA 51

Background

This first case concerned a negligence claim brought against the council by Mr Willis who tripped in a concealed hole on a grass verge. The hole had been left after a council parking sign was removed and grass had grown over it, making it difficult to detect.

Evidence showed that the sign had fallen over and was lying on the verge for a number of weeks. A nearby business owner reported the fallen sign and it was removed by the council shortly afterwards. However, the council did not fill the hole or provide any warning, leaving the hazard in place until Mr Willis’ accident.

In summary, the trial judge found that the council was negligent because:

• it had knowledge of the hole in the grass verge,
• the risk posed by the hole in the grass verge, which became covered by grass and which became invisible, created a risk which was foreseeable and not insignificant,
• the burden of taking precautions to avoid the risk of harm was minimal, and
• the council’s failure to take appropriate steps to fill in the hole, or to warn pedestrians of the existence of the hole, was a necessary condition to the occurrence of the harm.

The council appealed that decision to the CoA.

CoA’s decision

The CoA unanimously dismissed the appeal by the council on a number of grounds.

Negligence 

The CoA relevantly held that the council’s failure to act amounted to negligence. The risk of injury from the concealed hole in the pedestrian area was foreseeable, not insignificant and preventable. Measures such as filling the hole, marking it or placing a warning cone would have involved minimal cost and reduced the risk of harm.

Section 43A of the CL Act

The council argued that repairing the hole involved the exercise of a special statutory power, attracting immunity from liability under s43A of the CL Act.

Section 43A restricts tortious liability arising from the exercise of a special statutory power by a public authority, so that liability will only arise if the exercise of the power was so unreasonable that no reasonable authority could regard it as a proper exercise of that power.

The CoA rejected this argument because:

• the council was not sued based on the exercise of a statutory power,
• the precautions required to be taken (i.e. filling the hole, marking it and warning pedestrians) did not require the exercise of a statutory power; and
• ordinary persons could have taken similar steps.

The CoA held that the council’s omission was not based on the exercise of a ‘special statutory power’ and therefore s43A did not apply.

Section 45 of the CL Act

The council also sought to rely on s45 of the CL Act, which provides that a roads authority is immune from liability for the failure to carry out ‘road work’, unless it had actual knowledge of the particular risk.

The CoA held that the council had actual knowledge of the hole and this provision did not apply.

Further, even if the council did not have actual knowledge of the risk it still could not rely on s45 because the filling in of the hole after the removal of the sign was not a ‘road work’. Those works are connected with a ‘traffic control facility’ and therefore falls outside of the statutory definition of ‘road work’.

MacLean v Richmond Valley Council [2026] NSWCA 66

Background

The second case concerned a negligence claim brought by Ms MacLean against the council who tripped against a “raised lip” on a concrete footpath when returning from her regular early morning walk.

Ms MacLean claimed that the council was liable in negligence because it failed to respond to the trip hazard within the timeframe provided for by the council’s internal policy document.

The trial judge dismissed the claim and she then appealed that decision to the CoA.

CoA’s decision

The CoA unanimously dismissed Ms MacLean’s appeal.

Existence and breach of a duty of care

The CoA found that the council had a duty of care to maintain footpaths on the council owned land and address hazards to pedestrians generally. The relevant duty was to take reasonable care against a foreseeable risk of harm without that duty being conditioned on whether the person in question was exercising reasonable care for their own safety.

However, the CoA did not accept that the council breached its duty of care.

The CoA rejected the argument that the council did not meet the requirements of the internal policy and inspection report because that policy is a “self-imposed” guideline and does not determine the legal standard of reasonable care in relation to any trip hazard. The policy was aspirational, rather than obligatory.

The CoA found that there was an expectation that persons would exercise sufficient care to look where they are going and avoid obvious hazards. This must therefore inform the assessment of whether there was any breach of a duty of care in not remedying the height differential in the footpath prior to the fall.

Takeaways

These two decisions provide useful reminders to councils on their obligations to maintain land in their local government areas, particularly in road reserves.

A council that has actual knowledge of a specific hazard on land under its control may be liable in negligence where it fails to take simple, low cost precautions to remove or warn of a risk of harm that is not insignificant. However, it does not extend to managing a risk of harm that is not foreseeable, or is an obvious hazard to a person exercising sufficient care.

Further, a council can only seek to rely on s43A of the CL Act when its liability is based on the exercise, or failure to exercise a special statutory power. Section 43A will not apply where a council’s liability is based on a failure to prevent a risk of harm by taking an action that any person could take, for example, filling-in a hole in the ground or warning people of the risk of harm.

The decision in Willis also confirms that a work associated with a traffic control sign is not a ‘road work’. Accordingly, a council will not be able to rely on the limitation from liability in s45 of the CL Act where the breach of a duty of care relates to an act or omission in respect of a traffic control sign, such as a parking sign.

You can read the CoA decisions here: Orange City Council v Willis [2026] NSWCA 51; MacLean v Richmond Valley Council [2026] NSWCA 66

If you have any questions regarding this article, please leave a comment below or contact Anna Sinclair on 02 8235 9713, or Dominic Smith on (02) 8235 9172.